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Nasciturus Fiction

The Law of Persons in South Africa regulates the birth, private-law status and the death of  natural persons. Legal subjectivity of a child begins at birth. A foetus/unborn child therefore has no rights or duties or capacities. However, there are certain measures in South African law which provide for protection of foetuses/unborn children.

Nasciturus fiction, is the legal principle in which foetuses if subsequently born alive, will acquire all of the rights of born children whenever this is to its advantage.

According to sections 9, 10 and 11 of the Bill of Rights, everyone has inherent dignity and the right to have their dignity respected and protected; is equal before the law and has the right to equal protection and benefit of the law; and has the right to life.

According to South African common law, passage through the birth canal and/or a baby’s first breath is what bestows rights or the status of “right-bearership” on human beings. 

The Constitutional Court is yet to test the common law against the constitution. 

The court’s declaration that parents of miscarried babies “have the right to bury” their baby and that certain provisions of the Act and the regulations are unconstitutional for denying parents this right, is to be welcomed. This finding is a vindication of the dignity of bereaved parents and the humanity of miscarried babies.

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Author – Kate Bailey – Hill

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